This report describes and analyses the provisions of the Environmental Liability Directive (ELD) and examines its links with other directives, in particular the Environmental Crime Directive (ECD).
Coherence between those directives is very important for the delimitation of the concept of “damage”: for instance, biodiversity damage in the ELD has to be determined with reference to the criteria of the Birds and Habitats Directives, and water damage has to be determined with reference to the criteria of the Water Framework Directive; the scope of the notion of damage could then be read in a consistent way in both ELD and ECD.
In the ELD, the liable person is the operator: whenever he operates or controls a dangerous activity (listed in Annex III) he is subject to a strict liability rule, with exceptions and defences; in other cases (not listed in Annex III), when he causes damage to biodiversity, a fault based liability applies.
The remedy is not a punitive one, and it does not consist in a cash award. Rather, the operator bears the costs of remedial measures, which restore damaged natural resources or services to the baseline condition or to a similar level.